'Bump Messages' Ruled Not Republication

“Bump messages” ' messages posted to Internet forums for the purpose of moving older message threads to a more prominent spot on the page ' do not constitute “republication” of an allegedly defamatory statement, a New York state judge has concluded.

“Subjecting a single modification of an Internet Web site, such as a bump message, to the definition of a republication of defamation would have a 'serious inhibitory effect' on this form of communication,” Supreme Court Justice Herman Cahn of Manhattan ruled in Admission Consultants Inc. v. Google, 115190/07.

Justice Cahn's finding came in a ruling denying a request by Admission Consultants Inc., a higher-education admissions consultancy, for pre-action discovery aimed at obtaining the names and addresses of two anonymous posters to BusinessWeek's Web site.

In spring 2007, 12 posted statements appeared on the site of BusinessWeek magazine, businessweek.com, about Admission Consultants, operator of admissionconsultants.com, which provides guidance for college and graduate applicants.

Posted to the site's “B-Schools” forum, the statements were part of a message thread entitled “Do not use www.admissionconsultants.com.”

In October 2007, Justice Paul Feinman in Admission Consultants Inc. v. McGraw Hill Publishing Co., 111503/07, ordered McGraw Hill Publishing Co., publishers of BusinessWeek, to supply registration information for the screen names of the forum participants. Two participants used Google's “Gmail” service, so Admissions Consultants sought names, addresses and phone numbers of those users from Google.

The individuals named in the Google case, under the screen names of “globalup” and “diverdavis,” posted in June and April 2007 “various bump messages” to the allegedly defamatory thread.

The bump messages included statements by user “globalup” that although he had never used Admission Consultant's services, he would not be a customer in the future; and by “diverdavis” that he hoped the “company go bust” and “(t)hese guys sound like complete crooks.”

Admission Consultants argued each bump message constituted a “republication of the defamation for every message posted previously” and that each bump message by the two users constituted an actionable statement.

Justice Cahn disagreed, applying the “single publication rule” used for defamation actions against newspapers and magazines.

Citing Gregoire v. Putnam's Sons, 298 NY 119 (1948), Justice Cahn wrote: “Under the 'single publication rule,' which New York follows, the publication of a defamatory statement in a single issue of a newspaper or magazine, although widely circulated and distributed, constitutes one publication that gives rise to the cause of action.” That rule “applies here to the modification of an Internet Web site,” he said.

In any case, he concluded that the postings “merely express their personal opinions about Petitioner and therefore do not satisfy” the requirement that statements at issue represent false defamatory statement of fact.

Since a petitioner seeking pre-action discovery must show that it has “a meritorious cause of action,” the judge denied Admission Consultants' request for information.

David Heller, a staff attorney at the New York-based Media Law Resource Center, says he had not heard of any claim brought over bump messages.

Heller says that judges usually have applied the single publication rule to the Internet in the same way as it is applied to newspapers and magazines.

However, he predicts that the issue would arise more frequently “as publications migrate to the Web and archive material on the Web.”

Gary Port of Port & Sava in Floral Park, NY, attorney for Admission Consultants, says he was in the process of contacting his clients on whether they would appeal.

Port noted that Admission Consultants won a similar pre-action discovery motion in March, compelling Yahoo! Inc. to divulge the names and addresses of five of the 12 users who allegedly posted defamatory statements to the message board.

The company made the same republication argument in Admission Consultants Inc. v. Yahoo! Inc., 115191/07. Acting Supreme Court Justice Marylin G. Diamond of Manhattan granted the request for discovery in a brief order but did not mention the republication issue.

“Bump messages” ' messages posted to Internet forums for the purpose of moving older message threads to a more prominent spot on the page ' do not constitute “republication” of an allegedly defamatory statement, a New York state judge has concluded.

“Subjecting a single modification of an Internet Web site, such as a bump message, to the definition of a republication of defamation would have a 'serious inhibitory effect' on this form of communication,” Supreme Court Justice Herman Cahn of Manhattan ruled in Admission Consultants Inc. v. Google, 115190/07.

Justice Cahn's finding came in a ruling denying a request by Admission Consultants Inc., a higher-education admissions consultancy, for pre-action discovery aimed at obtaining the names and addresses of two anonymous posters to BusinessWeek's Web site.

In spring 2007, 12 posted statements appeared on the site of BusinessWeek magazine, businessweek.com, about Admission Consultants, operator of admissionconsultants.com, which provides guidance for college and graduate applicants.

Posted to the site's “B-Schools” forum, the statements were part of a message thread entitled “Do not use www.admissionconsultants.com.”

In October 2007, Justice Paul Feinman in Admission Consultants Inc. v. McGraw Hill Publishing Co., 111503/07, ordered McGraw Hill Publishing Co., publishers of BusinessWeek, to supply registration information for the screen names of the forum participants. Two participants used Google's “Gmail” service, so Admissions Consultants sought names, addresses and phone numbers of those users from Google.

The individuals named in the Google case, under the screen names of “globalup” and “diverdavis,” posted in June and April 2007 “various bump messages” to the allegedly defamatory thread.

The bump messages included statements by user “globalup” that although he had never used Admission Consultant's services, he would not be a customer in the future; and by “diverdavis” that he hoped the “company go bust” and “(t)hese guys sound like complete crooks.”

Admission Consultants argued each bump message constituted a “republication of the defamation for every message posted previously” and that each bump message by the two users constituted an actionable statement.

Justice Cahn disagreed, applying the “single publication rule” used for defamation actions against newspapers and magazines.

Citing Gregoire v. Putnam's Sons , 298 NY 119 (1948), Justice Cahn wrote: “Under the 'single publication rule,' which New York follows, the publication of a defamatory statement in a single issue of a newspaper or magazine, although widely circulated and distributed, constitutes one publication that gives rise to the cause of action.” That rule “applies here to the modification of an Internet Web site,” he said.

In any case, he concluded that the postings “merely express their personal opinions about Petitioner and therefore do not satisfy” the requirement that statements at issue represent false defamatory statement of fact.

Since a petitioner seeking pre-action discovery must show that it has “a meritorious cause of action,” the judge denied Admission Consultants' request for information.

David Heller, a staff attorney at the New York-based Media Law Resource Center, says he had not heard of any claim brought over bump messages.

Heller says that judges usually have applied the single publication rule to the Internet in the same way as it is applied to newspapers and magazines.

However, he predicts that the issue would arise more frequently “as publications migrate to the Web and archive material on the Web.”

Gary Port of Port & Sava in Floral Park, NY, attorney for Admission Consultants, says he was in the process of contacting his clients on whether they would appeal.

Port noted that Admission Consultants won a similar pre-action discovery motion in March, compelling Yahoo! Inc. to divulge the names and addresses of five of the 12 users who allegedly posted defamatory statements to the message board.

The company made the same republication argument in Admission Consultants Inc. v. Yahoo! Inc. , 115191/07. Acting Supreme Court Justice Marylin G. Diamond of Manhattan granted the request for discovery in a brief order but did not mention the republication issue.